Gastelum

This appeal reaches us on an agreed statement of facts. A jury awarded respondents damages in the amount of $290,000 for the wrongful death of Alvarado. The decedent, while working within the scope of his employment, was killed in an accident resulting from the concurrent negligence of appellants and his employer. Prior to trial, respondents were awarded death benefits and burial expenses payable by the workmen’s compensation carrier for the employer. The death benefit award was $20,500, payable at the rate of $70 per week “until fully paid.” At the time of judgment, $7,200 of the award was unpaid.

The trial court rendered judgment pursuant to the jury verdict reducing the award by $13,900, the amount that had been paid on the workmen’s compensation death benefit award to the date of judgment. The trial court did not reduce the judgment by the remaining balance of the death benefit award. Appellants assert that it should have done so.

The issue raised on this appeal is a part of the fallout of Witt v. Jackson, 51 Cal.2d 57 [ 17 Cal.Rptr. 369 , 360 P.2d 641 ], which establishes the principle that while an employer or its workmen’s compensation carrier is normally…